Dillon and others’ applications for judicial review – a radically unradical analysis of the Legacy Act

18 March 2024 by anuragdeb

Anurag Deb & Colin Murray

In Dillon [2024] NIKB 11, the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was challenged head on. The Court disapplied a number of provisions of the Act as being in breach of relevant aspects of EU law which continue to apply to Northern Ireland via the Windsor Framework. We have covered the precise EU law aspects of Dillon elsewhere and will only cover the ECHR elements of the judgment in this post. As will become clear, however, there is a critical link between these two main aspects of the judgment.

The disapplication of any part of an Act of the UK Parliament is infrequent enough to be notable. Given that Dillon marks not only some of the most extensive disapplication in history but also is the first such event after Brexit, the decision is significant. But, as we will demonstrate, the decision is not radical. Far from it, much of Mr Justice Colton’s 738-paragraph judgment is an orthodox application of the relevant law.

The provisions

All of the disapplied provisions were also found to have breached relevant Convention rights under the Human Rights Act 1998. These provisions were mainly structured around one of the main (and most controversial) aspects of the Legacy Act – the provision of immunity from criminal consequences. The main provision in this regard – section 19 – confers immunity from prosecution if three conditions are satisfied: if a person (P) requests immunity from the new body dealing with Troubles investigations (the Independent Commission for Reconciliation and Information Recovery or ICRIR); the panel deciding the application for immunity is satisfied that P has given an account which discloses their conduct forming part of the Troubles and the immunity panel is satisfied that the conduct would open P to criminal investigations or prosecutions as a result. Crucially, an immunity panel must grant immunity if the conditions in section 19 are met. Other provisions include the inadmissibility in criminal proceedings of materials included as part of an application for immunity (section 7(3)), the prohibition on criminal enforcement against anyone granted immunity (section 39) and stripping any law which requires or authorises conduct which comes under these prohibitions, of legal effect (section 42(1)).

The immunity provisions are buttressed by a 5-year time limit for requesting the ICRIR to review deaths and injuries arising out of the Troubles (sections 9 and 10) and the complete closing off of other existing investigatory avenues – namely the police (throughout the UK) and the Police Ombudsman (which investigates police misconduct in Northern Ireland)(section 45), inquests in Northern Ireland (section 44), inquests and coronial investigations in England and Wales and fatal accident and sudden death inquiries in Scotland (schedule 11). Finally, civil actions begun on or after the Legacy Bill’s first reading in the House of Commons are brought to an end (section 43).

In short, therefore, the Legacy Act funnels victims’ efforts to achieve some measure of justice and information through the ICRIR by extinguishing every other avenue of accountability, while simultaneously conferring immunity from prosecution on the very individuals who need to be held accountable. It is difficult to think of a statute quite as sweeping.

The assessment

Unsurprisingly, the breadth of the Legacy Act’s immunity provisions engaged the procedural obligations which have developed under Article 2 ECHR – the duty to investigate killings involving state actors. For Colton J (para 149-150), the starting position was the method by which this duty operates in the domestic legal order. This method, most recently clarified by Lord Reed in R (AB) v Justice Secretary [2021] UKSC 28, involves a significant measure of restraint. Domestic courts are enjoined from ‘anticipat[ing] … significant development[s]’ (para 77) by the European Court of Human Rights at Strasbourg, and instead directed to err on the side of a conservative and incremental approach, lest an approach more generous than the Strasbourg Court should leave any errors in the domestic courts uncorrectable at Strasbourg (as the UK does not have a right to petition the Strasbourg Court in respect of a judgment from one of its own courts)(para 57).

On this basis, Colton J explored the relevant jurisprudence of the Strasbourg Court. From a fairly equivocal start in the 1990s, the case law around immunity from prosecution or amnesties under the ECHR has evolved to a very clear point: immunity is a breach of Article 2 unless it is a part of wider reconciliation efforts. The Grand Chamber decisions in Margus v Croatia and Mocanu v Romania are indicative of this general prohibition. The respondent in Dillon (the Northern Ireland Secretary) tried to argue that the immunity provisions did not stand alone, but were part of a wider reconciliation process, including through information recovery via the ICRIR. This was a strange argument to have adopted. Cases like Margus accepted the need for amnesties in highly specific circumstances: ‘where they represented the only way out of violent dictatorships and interminable conflicts’ (Margus, para 113).

The Northern Ireland Secretary could not conceivably argue that Northern Ireland was subject to a violent dictatorship. Moreover, the Troubles had, by the definition used in the Legacy Act itself, ended in 1998. The need for a sweeping amnesty some 25 years later is thus inexplicable. This led to the obvious conclusion that the immunity provisions in the Legacy Act did not meet this requirement of necessity and thus amounted to breaches of Article 2 ECHR. As the procedural duty under Article 2 is effectively the same as that under Article 3, the immunity provisions were also held to have breached the latter (see e.g. Dillon, paras 148 and 215). Other provisions of the Act either contingent on or otherwise related to these provisions, such as those concerning the inadmissibility of evidence submitted by immunity applicants in criminal proceedings, were also declared incompatible on the same basis (para 434).

The principal immunity provisions thus determined; the court moved onto other challenges. A challenge brought by Teresa Jordan, mother of Pearse Jordan (a member of the Provisional Irish Republican Army shot dead by a police officer) and grounded on Article 8 ECHR – that the grant of immunity would demean Ms Jordan’s private and family life – was dismissed. Colton J instead considered that Article 2 ECHR was the ‘proper prism’ by which to consider the immunity provisions and that expanding this scope to Article 8 would be ‘artificial and mistaken’ (para 241).

A challenge to the 5-year limit for requesting reviews for being in breach of Articles 2 and 3 ECHR was also dismissed, effectively for bring premature. The court considered that if a situation arises at the end of the 5-year period whereby new evidence comes to light which may engage the Article 2 or 3 investigative obligation (the so-called Brecknell scenario), the state will at that point ‘be under an obligation to deal with the matter’ (para 250).

The judge next dealt extensively with one of the main challenges to the Legacy Act – that the ICRIR was institutionally incapable of complying with the requirements of the investigative obligation under Articles 2 and 3. These requirements are quite familiar in Strasbourg case law, having been repeated in some of the more notable judgments concerning the Troubles. Colton J began by observing that these requirements were ‘inter-related’ and ‘should not be analysed in isolation’ (para 258). Without delving too deeply into any one of these elements, two main points ultimately defeated the applicants’ challenge in this context. First, the ICRIR had yet to start a review, meaning that any challenge was somewhat premature (see e.g. para 267). Second, the powers, appointments and frameworks by which the ICRIR proposed to carry out its functions were, at least on paper, either compliant with the requirements of the duty under Articles 2 and 3 or still subject to consultation in which victims were able to take part (see e.g. paras 319, 341 and 357). It was also significant that the Chief Commissioner of the ICRIR is the former Lord Chief Justice of Northern Ireland Sir Declan Morgan, ‘a person of huge judicial experience’ (para 272). All of these factors when taken together militated against finding breaches of Article 2 and 3 ‘at this remove’ (para 367). This approach, however, can also be read as the court putting the ICRIR on notice of the extent to which these issues will be open to challenge if its practice in any of these regards fails to reflect the requirements of the ECHR. 

The extinguishment of civil proceedings, however, was always going to be a more difficult prospect for the court to accept under Article 6 ECHR. Although the Legacy Act does not interfere with anyone’s ability to bring proceedings under the Human Rights Act, the restriction on this Act’s backwards reach (see our previous analyses of Dalton [2023] UKSC 36 and McQuillan [2021] UKSC 55) effectively precludes the vast majority of possible human rights actions related to the Troubles. Colton J considered that the bar on new civil proceedings did not impair ‘the very essence’ of victims’ rights under Article 6, because criminal prosecutions remained a possibility, however distant (for those whose applications for immunity are rejected), and courts dealing with such prosecutions could also order compensation (para 385).

The judge therefore turned to whether the bar was a proportionate way of achieving a legitimate aim. In the court’s assessment, the Legacy Act pursued a legitimate aim – namely reducing the ‘burden on the Northern Ireland civil courts’ and allowing victims’ families to bypass the ‘strained civil court system in order to receive the answers they seek’ (para 394). The court found that the bar was generally proportionate and that it was ‘for the state and Parliament to strike the balance in this assessment’ (para 406). But this was subject to one important caveat – the bar applied retrospectively, against any civil proceedings issued on or after the first reading of the Legacy Bill. This retrospective application, the court held, was an unforeseeable and unassailable element which, in keeping with recent Strasbourg jurisprudence on this point (see Legros v France), was a disproportionate interference with Article 6 rights (para 413). A related provision – barring the use of any disclosure provided to the ICRIR (with the exception of some disclosure) in civil proceedings – was held to be a similarly disproportionate interference with Article 6 rights given the sweep of the bar (para 461). Far from being a sweeping assertion of human rights requirements, it was therefore the narrowest of multiple arguable human rights challenges to the bar on civil actions which the court accepted

Finally, the court dealt with a challenge grounded in Article 14. Starting with the Supreme Court’s decision in R (SC) v Work and Pensions Secretary [2021] UKSC 26, Colton J considered it necessary only to examine those provisions of the Legacy Act not already declared incompatible with various ECHR rights. The question of status took up some judicial time, though the court proceeded on the assumption that the applicants had established a relevant status under Article 14 (a victim of the Troubles – which, incidentally, is a status the Legacy Act recognises in different ways, see e.g. section 9), in order to address the most important question – whether any difference in treatment was justified. Following SC, Colton J held that Parliament was entitled to legislate as it had done to establish the ICRIR and endow it with its particular powers (para 515).

The link with the Charter of Fundamental Rights

Without repeating our analysis of the EU law aspects of the judgment (which can be found here), there is an important link between these aspects and the ECHR aspects we cover here. The EU Charter of Fundamental Rights explicitly declares (Article 52(3)) that where its rights correspond with those in the ECHR, the ‘meaning and scope’ of the former shall ‘be the same’ as the latter. Consequently, as the Charter falls within the body of EU law applicable in Northern Ireland via the Withdrawal Agreement (Article 2), Colton J simply and succinctly followed as the law directed him (para 541).

As a result, the breach of Articles 2, 3 and 6 of the ECHR (as identified above) corresponded with a breach of Articles 2, 4 and 47 of the Charter insofar as EU law applied to the Act (through the application of the EU Victims’ Directive). This meant that the sections of the Legacy Act declared incompatible under the Human Rights Act were also disapplied under the European Union (Withdrawal) Act 2018.

The impact

Colton J’s assessment of ECHR compliance is a study in fidelity to Strasbourg jurisprudence and judicial restraint. Far from the confident encouragement from the late Lord Kerr JSC in Ambrose v Harris [2011] UKSC 43, that domestic courts should not ‘adopt an attitude of agnosticism’ in relation to questions of ECHR compliance as yet unanswered by Strasbourg, and should instead ‘feel [un]inhibited from saying what we believe Strasbourg ought to find’ (Ambrose, paras 128 and 130), Colton J in Dillon said nothing which the Strasbourg Court has not already said – indeed repeatedly said – across the decades. This is not necessarily a criticism of the judge. Much as some human rights practitioners and academics (and we include ourselves in this cohort) would readily take up Lord Kerr’s call to understand Strasbourg jurisprudence as a baseline to further develop in the domestic context, it is important for courts not to venture irresponsibly outside the clear boundaries of domestic jurisprudence established by the Supreme Court. That jurisprudence, in addition to directing textual and jurisprudential fidelity, has also focussed on the importance of legal certainty as a reason for such fidelity (see e.g. Dalton, para 44), and consequently, judicial restraint.

The reason why Dillon seems so notable, or strange, is not in the court’s reasoning, but rather in the remedies it ordered. As we have explained elsewhere, Colton J did not possess any discretion in disapplying the offending sections of the Legacy Act. And nor is this claim legal sophistry. The relationship between the Charter and the ECHR, the post-Brexit applicability of the Charter in Northern Ireland and the consequences of breaching it domestically have been clear in the text of various publicly available documents since at least 2019. Some of these documents, buttressed by statements made in Parliament, demonstrate how uncontroversial the UK Government has considered the key provisions which were relevant in Dillon. It is therefore a surprise that the Government moved – and Parliament enacted – a statute with seemingly no thought to the consequences with regard to the regime of protections set up by the Withdrawal Agreement and brought into domestic law by Parliament.

In any event, Dillon is likely destined for the Supreme Court – the UK Government having already announced its intention to appeal the decision to the Northern Ireland Court of Appeal. With the current government thus determined to defend its legislation to the last, the only thing that can perhaps short circuit this protracted litigation is a new government in Westminster. Colton J’s decision is not implacably hostile to a ‘legacy’ process which takes the place of ordinary court and inquest processes in many cases, but is instead directed at the Legacy Act’s specific shortcomings. In this regard, it dovetails neatly with the conclusions of Jon Boutcher in the Operation Kenova report, published days after the Dillon decision (into a specific case of the authorities’ handling of an informant during the conflict)(para 13.21):

‘The best platform for a process that provides safeguards for government, the security forces, paramilitary groups and most importantly for victims and their families is a framework underpinned by the pillars of the ECHR’.

Although too early to make any reasoned predictions as to the outcome of an appeal, it is important to understand that the Dillon judgment is controversial, in large part, not because of the court’s approach to the relevant law but because the UK Government does not like the outcome and would like to influence how the courts perform their role in rights cases. The High Court has not pushed the boundaries of the interpretation of any of the relevant rights in this case. Indeed, if in the name of legal certainty, the purposive interpretation of ECHR rights has taken a backseat to stricter textual and jurisprudential fidelity, then Dillon is a 700-paragraph exemplar of restrained application of existing jurisprudence on the ECHR rights. The fact that its consequences have surprised, even concerned, some, is no matter either for the court or the victims whose rights the court vindicated.

Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP.

Colin Murray is professor of Law and Democracy at Newcastle University